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LEGAL ASPECTS OF INTELLECTUAL PROPERTY USE IN USA MARKETING
CAMPAIGNS
E.A. Fomicheva, master's degree State University of Management (Russia, Moscow)
DOI:10.24412/2500-1000-2024-10-5-250-254
Abstract. The article analyzes the legal aspects of intellectual property rights (IPR) in marketing campaigns in the USA. It explores the various types of IPR, including trademarks, copyrights, patents, and trade secrets. The article examines the legal framework governing these IPR types, highlighting significant laws such as the Lanham Act and the Copyright Act. The paper emphasizes the challenges faced by marketers in navigating IPR, particularly regarding infringement issues in the digital landscape. Furthermore, the article discusses the implications of emerging technologies on IPR in marketing. Overall, the research underscores the importance of proactive IPR management strategies for businesses seeking to protect their creative assets.
Keywords: intellectual property rights, marketing campaigns, legal framework, trademark infringement, copyright, emerging technologies.
The intersection of intellectual property rights (IPR) law and marketing practices has become increasingly relevant in the contemporary digital landscape. As businesses leverage creative content, branding strategies, and innovative technologies to capture consumer attention, the protection and management of IPR have emerged as critical components of successful marketing campaigns. In the USA, the legal framework governing IPR - including trademarks, copyrights, patents, and trade secrets - provides a robust system designed to safeguard the interests of creators and businesses alike.
According to the USA Patent and Trademark Office, trademark registrations increased by 18,3% from 2020 to 2021, reflecting the growing importance of brand identity in marketing strategies. Trademark applications are expected to grow at an average rate of 4,5% per year through 2025 [1]. However, this surge also brings forth significant legal challenges, particularly concerning IPR infringement, where companies risk costly litigation and reputational damage. This paper aims to analyze the legal landscape surrounding
intellectual property in marketing campaigns in the USA, exploring both the challenges and opportunities that arise within this dynamic field. By elucidating these issues, the research seeks to provide valuable insights for marketers, legal professionals, and policymakers navigating the intricacies of IPR in contemporary marketing efforts.
Main part. Legal aspects of IPR in marketing campaigns
According to American law, IPR represents a set of rights to intangible assets that arise from human creative and intellectual activity. The four primary types of IPR relevant to marketing campaigns are trademarks, copyrights, patents, and trade secrets. Each serves a unique purpose in protecting the interests of businesses and individuals engaged in marketing activities.
Trademarks are symbols, words, or phrases legally registered or established by use as representing a company or product. According to Sta-tista.com, in 2020, USA companies successfully registered a total of 836 496 trademarks in the USA and abroad (fig. 1).
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Figure 1. Number of trademark registrations by USA companies
This is up from 2003, when USA companies registered 303 073 trademarks [2]. According to the World Intellectual Property Organization (WIPO) report, 899 499 trademarks were registered in 2021, and 767 375 in 2022. Trademarks not only distinguish products in a crowded marketplace but also build brand loyalty and recognition. They play a vital role in marketing, as consumers often rely on trademarks to identify and choose products.
Copyrights protect original works of authorship, such as literature, music, and visual art, granting the creator exclusive rights to use, reproduce, and distribute their work. In 2023, the USA Copyright Office processed 441 526 registration claims and 40,6 million from 1973 to 2023 [3]. In marketing, copyright protection is essential for safeguarding creative materials, including advertisements, promotional videos, and digital content. Marketers must be mindful of copyright laws, particularly when using third-party materials, to avoid infringement.
Patents provide exclusive rights to inventors for their inventions, preventing others from making, using, or selling the patented technology without permission. The total number of patents granted in the USA reached 338 335 in 2021, reflecting the innovative nature of marketing tools and technologies [4]. Marketing campaigns increasingly leverage patented technologies to enhance consumer engagement, such as unique product features or advertising platforms.
Trade secrets consist of confidential business information that provides a competitive edge, such as marketing strategies, formulas, or processes. Trade secrets may include, but are not limited to, the types of inventive discoveries that
are eligible for USA patent protection. For example, the inventor of a new type of manufacturing equipment - or a new way to use such equipment - might have a choice either to apply for a patent on the invention or to maintain it as a trade secret. One advantage of patent protection is that, unlike trade secrets, a patent gives its owner a monopoly that competitors cannot legally circumvent by reverse-engineering or independently discovering the invention. On the other hand, patents require public disclosure of the invention and expire after a certain time - typically, about 20 years - whereas trade secrets may be maintained indefinitely. Protecting trade secrets is crucial in marketing to maintain a competitive advantage while adhering to legal standards.
Issues and consequences of IPR protection
Navigating the legal landscape of IPR in marketing campaigns poses significant challenges for businesses. Infringement issues are prevalent, with companies facing lawsuits for alleged trademark or copyright violations. According to the most recent available data, in fiscal year (FY) 2021, 57 287 cases were reported to the USA sentencing commission: 36 involved copyright and trademark offenses. Copyright and trademark offenses have decreased by 56,1% since FY 2017 [5]. High-profile cases, such as those involving major brands like Nike and Adidas over trademark disputes, highlight the potential for reputational damage and financial loss resulting from IPR infringements. Moreover, the rise of digital marketing (DM) has exacerbated the challenges associated with IPR protection. The ease of sharing and reproducing content online has led to a significant increase in copyright infringement cases.
Compliance and ethical considerations play a crucial role in the marketing landscape [6]. Marketers must ensure that their campaigns adhere to IPR laws and regulations to mitigate the risk of legal repercussions. Ethical considerations extend beyond compliance. Marketers should consider the implications of their actions on brand reputation and consumer trust. Companies that demonstrate respect for IPR rights are more likely to
The rise in copyright claims, trademark disputes, and patent-related issues highlights the need for marketers to remain vigilant in protecting their creative assets. With increasing digital security breaches and trade secret thefts, companies must prioritize robust IPR management strategies, including securing licensing agreements, conducting patent research, and registering trademarks. Additionally, businesses should ensure compliance with digital copyright regulations and train marketing teams to avoid infringement. By implementing these best practices, companies can safeguard their intellectual property and maintain a competitive edge in the digital marketplace.
Legal framework governing IPR in marketing
build positive relationships with consumers and other stakeholders.The regulatory environment varies significantly across regions. By understanding and considering cultural and law nuances, companies can achieve long-term success in diverse global markets [7]. As it follows from the data in table 1 the evolving landscape of DM presents both opportunities and challenges for businesses.
The legal framework governing IPR in the USA is complex and multifaceted, involving federal laws, state laws, and international treaties. Enacted in 1946, the Lanham Act provides remedies for trademark infringement, dilution, and false advertising, thereby enabling businesses to defend their brands in the marketplace.
Copyright law in the USA is governed by the Copyright Act of 1976, which outlines the rights of copyright holders and the limitations on those rights. The law protects original works of authorship from unauthorized use, emphasizing the importance of obtaining permissions for copyrighted materials utilized in marketing campaigns [8]. The fair use doctrine, a critical aspect of copyright law, permits limited use of copyrighted materials without permission under specific condi-
Table 1. Trends and challenges of modern IPR
IPR type Common legal challenges Recent trends Strategies for marketers
Copyrights Copyright infringement online. Unclear boundaries of fair use. Increasing copyright claims in DM, including social media and influencer marketing. It is necessary to obtain permission for the use of third-party materials and to use licensed stock content or original creations.
Patents Patent infringement claims when using new technologies. High cost of defending against patent litigation. Rise in patented marketing technologies (e.g., AI-driven algorithms). Conducting a thorough patent search before implementing new technologies. Using licensing agreements for patented tools.
Trademarks Trademark infringement through unauthorized use of brand identifiers. Trademark dilution risk in digital platforms Surge in trademark disputes with the rise of online marketing and e-commerce. Trademark registration with the USPTO. Monitoring the use of brand identifiers across all platforms to avoid infringements.
Trade secrets Trade secret theft and economic espionage cases. Difficulty maintaining confidentiality. Increasing digital security breaches - loss of trade secrets and competitive intelligence leaks. Implementing robust confidentiality agreements and securely storing confidential marketing data.
Digital IPR Unauthorized sharing or reproduction of digital content. Copyright claims related to online content (e.g., social media posts). Growth in copyright infringement through social media. Increased monitoring of online IPR violations. Using IPR management tools to monitor and protect IPR rights online. Training marketing teams on digital copyright rules and platform-specific regulations.
Licensing Disputes over terms of IPR licensing agreements. Misuse of licensed content beyond permitted scope. More companies opting for licensing agreements to legally incorporate third-party IPR into their campaigns. Ensuring proper legal review of licensing agreements. Defining the scope of use in licensing contracts to avoid overreach.
tions, such as criticism, comment, or educational purposes. However, marketers must exercise caution, as the boundaries of fair use can be ambiguous and subject to legal interpretation. Patents are administered by the Patent Act, which outlines the procedures for applying for and granting patents. The USA Patent and Trademark Office evaluates patent applications based on novelty, non-obviousness, and utility. Marketers utilizing patented technologies must ensure compliance with patent laws to avoid infringement.
As the marketing landscape continues to evolve, emerging trends will shape the future of IPR and its implications for marketers. The advent of artificial intelligence (AI) and machine learning (ML) technologies presents both opportunities and challenges in IPR management. Marketers leveraging AI for content creation must navigate the complexities of copyright ownership and fair use. Additionally, the growing prominence of influencer marketing raises questions about IPR concerning user-generated content and brand partnerships [9].
Conclusion
The exploration of IPR in USA marketing campaigns reveals a complex legal landscape
References
1. Fiscal Year Congressional Justification / U.S. Patent and Trademark Office. - URL: https://www.uspto.gov/sites/default/files/documents/fy21pbr.pdf (date of application: 09.10.2024).
2. Number of trademark registrations by U.S. companies from 2003 to 2020 / Statista. - URL: https://www.statista.com/statistics/256791/number-of-trademark-registrations-by-us-companies/ (date of application: 10.10.2024).
3. United States Copyright Office Annual Report / United States Copyright Office. - URL: https://www.copyright.gov/reports/annual/2023/ar2023.pdf (date of application: 11.10.2024).
4. Number of utility patents issued in the United States from FY 2000 to FY 2021 / Statista. - URL: https://www.statista.com/statistics/256594/number-of-utility-patent-grants-in-the-us/ (date of application: 12.10.2024).
5. Copyright and trademark infringement / United States Sentencing Commission. - URL: https://www.ussc.gov/research/quick-facts/copyright-and-trademark-infringement (date of application: 13.10.2024).
6. Atanasova I. Copyright infringement in digital environment // The Journal of Law and Economics. - 2019. - V. 1. - P. 13-22.
7. Dudaiti G. Cross-cultural business strategies in ride-hailing: How understanding local markets contributes to successful expansion // Innovacionnaja nauka. - 2024. - № 7-2/2024. - P. 77-82.
8. Hutukka P. Copyright Law in the European Union, the United States and China // International Review of Intellectual Property and Competition Law. - 2023. - V. 54. - P. 1044-1080.
9. Durmu§ §enyapar H.N. The Future of Marketing: The Transformative Power of Artificial Intelligence // International Journal of Management and Administration. - 2024. - V. 8. - P 1-19.
with both opportunities and challenges. As businesses increasingly use IPR to distinguish their brands, understanding different IPR types -trademarks, copyrights, patents, and trade secrets - is essential. These provide legal protections while fostering consumer trust. IPR laws like the Lanham Act for trademarks and the Copyright Act for copyrights create structured protections, but digital marketing complicates compliance. The rise of digital content has increased copyright infringements, requiring marketers to carefully balance creativity and legal adherence to avoid litigation. Infringement issues highlight the need for proactive IPR management. The contentious nature of IPR in marketing demands compliance, which build long-term consumer trust. Emerging technologies, like AI and influencer marketing, will further impact IPR, making ongoing vigilance essential for protecting creative assets. In summary, understanding and managing IPR is crucial for marketers to protect their campaigns while minimizing legal risks. As the landscape evolves, businesses must adapt to new challenges to ensure long-term success.
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ПРАВОВЫЕ АСПЕКТЫ ИСПОЛЬЗОВАНИЯ ИНТЕЛЛЕКТУАЛЬНОЙ СОБСТВЕННОСТИ В МАРКЕТИНГОВЫХ КАМПАНИЯХ В США
Е.А. Фомичева, магистр Государственный университет управления (Россия, г. Москва)
Аннотация. В статье анализируются правовые аспекты использования интеллектуальной собственности (ИС) в маркетинговых кампаниях в США. В ней рассматриваются различные виды ИС, включая товарные знаки, авторские права, патенты и коммерческую тайну. Изучается правовая база, регулирующая эти виды ИС, выделяются такие важные законы, как Закон Лэнхема и Закон об авторском праве. В работе подчеркиваются проблемы, с которыми сталкиваются маркетологи при ориентации в законодательстве об ИС, особенно в отношении вопросов нарушения прав в цифровом пространстве. Кроме того, в статье обсуждается влияние новых технологий на права ИС в маркетинге. В целом, исследование подчеркивает важность про-активных стратегий управления ИС для предприятий, стремящихся защитить свои творческие активы.
Ключевые слова: интеллектуальная собственность (ИС), маркетинговые кампании, правовая база, нарушение прав на товарные знаки, авторское право, развивающиеся технологии.
